People v. Myers

Defendant was convicted of the crime of burglary and appeals from the judgment of conviction and from an order of the trial court denying his motion for a new trial.

[1] Over the objection of appellant the trial court permitted the prosecution to read to the jury the testimony of one Bush which was given at • appellant’s preliminary examination before the committing magistrate. Section 686 of the Penal Code provides that evidence may be received in that form only when the defendant has “cross-examined or had an opportunity to cross-examine the witness’’ at the preliminary examination. Appellant contends that the right contemplated by this section is the right fully and completely to cross-examine, and that in the present instance the right was abridged because the magistrate sustained objections to proper questions put to the witness by appellant’s counsel. Appellant argues thoroughly the proposition that the right to cross-examine referred to in section 686 is of the breadth for which he contends, and cites authority in support of his argument, but he presents neither argument nor authority upon the question touching the rulings of the magistrate, which he says were erroneous. We have merely the assertion that the rulings were improper. Under such circumstances we deem it more than sufficient to say that we have examined the record and that it appears to us that the rulings were correct. Granting for the sake of argument that they were not correct, we do not decide whether or not the fact would operate altogether to exclude the testimony from admission in the superior court. [2] The magistrate, of course, had the power to rule upon

[3] The next question presented by appellant also concerns the reception in evidence of the testimony of Bush taken at the preliminary examination. The cause had been set down for trial on June 22, 1925. Bush was in attendance on that day in response to a subpoena which had been served upon him. The hearing was continued to June 30th and all witnesses were instructed by the court to return at that time. When the day came Bush was not present in court, but all witnesses were admonished by the court to return on July 9th, to which date the hearing was then continued. On that day the trial was commenced and it proceeded without interruption to a conclusion. It is contended that under these conditions the trial court erred in receiving in evidence the testimony of Bush which was taken at the preliminary examination. The admission of testimony in that form is governed by the provisions of section 686 of the Penal Code, already mentioned. The enactment provides in part that testimony heard at a preliminary examination may be read on a trial in the superior court when it is shown that the witness “is dead or insane, or cannot with due diligence be found within the state.” The prosecution endeavored to bring itself within this provision by proof that Bush left the state after June 22d and continued absent therefrom until the time when his testimony at the preliminary examination was read at the trial, and the evidence was such that the trial judge would have been justified in so finding. Appellant contends that this evidence was not sufficient as a foundation for the admission of the testimony in question. It is said that Bush, within the meaning of section 686, was found within the state when the subpoena was served upon him which required his presence in court on June 22d, and that a search for him within the state was unavailing under the statute after that service, after he had appeared on the day named in response thereto, and after he had failed to appear at later sessions under instructions from the court so to do and was in contempt of court for his derelictions. It is remarked, to state appellant’s contention in his own language, that “the force and effect of the statute has been spent” by the finding of a

No authorities are cited upon this point by either appellant or respondent, and after a diligent search we have found none which exactly touches it. The question docs not, however, seem difficult of solution. [4] The purpose of section 686 was to enable the prosecution to introduce in evidence in the superior court testimony which was taken at a preliminary examination when the witness cannot be found in the state at the time of the trial, or, perhaps we had better say at a time so near the date of the trial and under such circumstances that the trial judge may determine that his attendance cannot be had at the actual trial. The beneficent end of the enactment would be largely frustrated if it were held that his presence in the state at some period before the trial, at which time a subpoena was served upon him, would render its provisions inapplicable. To make the applicability of the section depend upon the question whether or not a subpoena had been served would seem, when the purpose of the statute is kept in view, to drag a false quantity into the argument. What difference can it make whether a subpoena is served or not if due diligence, exercised within a proper period before the trial, shows that the actual attendance of the witness cannot be had during the trial? The evidence contained in the testimony taken at the preliminary examination, when such a showing is made, is as much needed in the due administration of justice—and that is what the section is designed to promote—where a subpoena has been previously served as where one has not been served. The adoption of the rule for which appellant contends would make the applicability of section 686 depend upon the elasticity of conscience or lack of fear which might permit a witness to disregard the mandate of process which had been served upon him, and not at all on the diligent exercise, upon the part of the agents of the People, of the duty to procure, if possible, the personal attendance of the witness. We think, indeed, that the service of the subpoena, instead of closing the door upon the right of the prosecution to use at the trial Bush’s testimony taken on the preliminary examination, was an important step in the protection and preservation of that right. Having found Bush

It is insisted that the testimony of Bush at the preliminary examination was inadmissible, for the reason that the prosecution knew that he was about to absent himself from the state and failed to secure his attendance by the means provided in section 879 of the Penal Code. The section provides that whenever a judge is satisfied by proof on oath that there is reason to believe that a witness in a criminal case will not appear and testify at the trial he may order the witness to enter into a written undertaking securing his attendance. We doubt if the evidence here is sufficient to shów that the district attorney had knowledge that Bush was about to leave the state, and could therefore have asked for the relief contemplated by section 879. [6] Passing that question by, however, it has been directly decided that it is not necessary to invoke the provisions of the section as a prerequisite to the use at the trial of testimony taken at a preliminary examination (People v. Flannery, 3 Cal. App. 41 [ 84 Pac. 461 ]). With the conclusion there reached we are satisfied.

[7] It is also contended that Bush’s testimony at the preliminary could not properly have been used at the trial unless it were shown that his absence from the state was to be permanent, and no such showing was made. A rule to that effect has been announced in some jurisdictions but it has never prevailed in this state. In those jurisdictions in which the rule obtains the question has usually been discussed in the light of the provisions of constitutions securing to an accused the right to be confronted by the witnesses against him. [8] There is no such provision in the constitution of this state, the right here being preserved merely by statute (Pen. Code, sec. 686; People v. Hayes, 72

[9] When the testimony of Bush given at the preliminary examination was offered appellant attempted to withdraw

Judgment and order affirmed.

Finlayson, P. J., and Craig, J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 3, 1926.